B-205763 L/M, MAR 26, 1982, OFFICE OF GENERAL COUNSEL

B-205763 L/M, MAR 26, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: 1. GAO SUPPORTS EFFORT TO ESTABLISH UNIFORM CIVILIAN AGENCY POLICY REGARDING ACQUISITION OF DATA, RIGHTS IN DATA, AND COPYRIGHTS BY ADDITION OF FPR SECS. 1-9.200 THROUGH 1-9.206-2 AND FPR SECS. 1-7.203-2 THROUGH 1-7.205. 2. GAO MAKES SPECIFIC COMMENTS ON PROPOSED FPR SECS. 1-9.200 THROUGH 1-9.206-2 REGARDING NEED FOR INDEX FOR COMPUTER SOFTWARE REFERENCES AND CLAUSES, NEED TO PROVIDE CONTRACTING OFFICERS WITH SPECIFIC GUIDANCE REGARDING DATA TO BE PROVIDED UNDER CONTRACTS FOR PURCHASE OR LEASE OF EXISTING SOFTWARE, NEED TO PROVIDE GUIDANCE FOR GOVERNMENT RIGHTS IN DATA DEVELOPED BY CONTRACTORS USING INDEPENDENT RESEARCH AND DEVELOPMENT FUNDS, AND NEED TO EXPLAIN REQUIREMENTS OF FREEDOM OF INFORMATION ACT WITH RESPECT TO DATA FURNISHED TO GOVERNMENT.

MR. PHILIP G. READ, OFFICE OF ACQUISITION POLICY:

BY LETTER DATED DECEMBER 8, 1981, YOU REQUESTED OUR COMMENTS ON A PROPOSED AMENDMENT TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) ADDING FPR SECS. 1-9.200 THROUGH 1-9.206-2 AND FPR SECS. 1-7.203-2 THROUGH 1 7.205. THE AMENDMENT PROVIDES COVERAGE AND APPLICABLE CONTRACT CLAUSES REGARDING THE ACQUISITION OF DATA, RIGHTS IN DATA, AND COPYRIGHTS.

WE SUPPORT YOUR EFFORT TO ESTABLISH UNIFORM CIVILIAN AGENCY POLICY IN THIS AREA. WE ARE CONCERNED, HOWEVER, ABOUT THE SCATTERED REFERENCES MADE TO COMPUTER SOFTWARE WITHOUT A COMPLETE AND SPECIFIC INDEX OF (OR SECTION CONSOLIDATING) THE APPLICABLE COMPUTER SOFTWARE PROVISIONS OF THIS REGULATION. WE BELIEVE THAT THE USERS OF THE PROPOSED REGULATION WHO ARE PROCURING COMPUTER SOFTWARE, WILL BE GREATLY AIDED IF ALL APPLICABLE CLAUSES AND REFERENCES ARE SPECIFICALLY IDENTIFIED IN THE TABLE OF CONTENTS OR A COMPUTER SOFTWARE SECTION IS SEPARATELY PROVIDED.

IN ADDITION, ALTHOUGH SECTION 1-9.204-8(B), CONTRACTS FOR PURCHASE OR LEASE OF EXISTING COMPUTER SOFTWARE, RECOGNIZES THAT IT IS IMPORTANT THAT A CONTRACT FOR THE PURCHASE OR LEASE OF EXISTING COMPUTER SOFTWARE "ADEQUATELY DESCRIBE THE COMPUTER PROGRAM OR THE COMPUTER DATA BASE, THE FORM (TAPE, PUNCH CARDS, DISK PACKS AND THE LIKE) OF THE PROGRAM TO BE DELIVERED, AND ALL THE NECESSARY DOCUMENTATION PERTAINING THERETO," IT DOES NOT PROVIDE SUFFICIENT GUIDANCE TO CONTRACTING OFFICERS. THUS, WE BELIEVE THE FOLLOWING SHOULD BE INSERTED AFTER THE FIRST SENTENCE OF SECTION 1-9.204-8(B):

"SPECIFICALLY,

- FOR DATA BASES, THE ENCODING TO BE USED (SUCH AS ASCII ON EBCDIC),

- FOR COMPUTER PROGRAMS, (1) WHETHER SOURCE CODE, AS WELL AS OBJECT CODE, SHALL BE DELIVERED AND

(2) WHO SHALL PROVIDE COMPUTER PROGRAM MAINTENANCE, - AND FOR DOCUMENTATION, (1) WHETHER MACHINE READABLE FORM, AS WELL AS HARD COPY, IS WANTED, (2) WHO SHALL MAINTAIN THE DOCUMENTATION, AND (3) APPLICABILITY OF AGENCY DOCUMENTATION STANDARDS OR FIPS PUB'S 38 AND 64."

FURTHERMORE, WE BELIEVE THAT THE PROPOSED AMENDMENT SHOULD CONTAIN SOME SPECIFIC GUIDANCE ON GOVERNMENT RIGHTS TO DATA DEVELOPED BY CONTRACTORS USING INDEPENDENT RESEARCH AND DEVELOPMENT FUNDS SUPPLIED BY THE GOVERNMENT. IN ADDITION, SOME CLARIFICATION OR EXPLANATION OF THE REQUIREMENTS OF THE FREEDOM OF INFORMATION ACT MAY BE NEEDED WITH RESPECT TO DATA FURNISHED TO THE GOVERNMENT. CONTRACTORS HAVE EXPRESSED ALARM TO US OVER DATA REGARDING NEW TECHNOLOGY THEY MAKE AVAILABLE TO THE GOVERNMENT BEING MADE AVAILABLE TO THEIR COMPETITORS UNDER THE PROVISIONS OF THE FREEDOM OF INFORMATION ACT.

WE HAVE NO FURTHER COMMENTS TO OFFER.